Kandu Busu v Post and Telecommunication Corporation

• Jurisdiction: Papua New Guinea
• Citation: [1993] PNGLR 321
• Date: 03 March 1993
• Court: National Court
• Year: 1993

National Court: Brown J

Judgment Delivered: 3 March 1993

1 Judicial review—whether decision to terminate plaintiff's employment reviewable

2 Natural justice—whether the PTC Reconsideration Committee was required under staff by–laws to apply the rules of natural justice before confirming the termination of plaintiff—PTC Staff By–laws s24 and s25

3 Remedies—certiorari—whether appropriate plea for breach of employment contract—whether plaintiff's employment has incidence of some public character or whether it was a master and servant relationship

4 Practice and procedure—claim for general and special damages—whether claim can stand with the originating summons—statement of claim not filed in originating summons nor served—whether claim can be considered

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Brown J: This originating summons filed on the 4 December 1991 seeks an order in the nature of certiorari to quash the decision of the defendant Corporation terminating the plaintiffs services for disciplinary reasons. Leave was later given for review. The plaintiff also sought general and special damages for dismissal. Such a claim cannot stand with the originating summons as filed and on the 17 June last year I directed the plaintiff to proceed by way of statement of claim in the event of an apparent allegation of an unlawful dismissal and hence, claim for damages for breach of employment contract. The plaintiff has not seen fit to comply with that direction so that, although he handed up at the outset of the hearing today, a document headed Statement of Claim, it has been neither filed nor served.

I must disregard it and propose to deal with the originating summons as originally filed for that is the cause which the defendant Corporation has come to answer.

The defendant Corporation has argued that the relief sought by the plaintiff is not available for the disciplinary course adopted by the Corporation may be categorised as acts of a private or domestic tribunal. In those circumstances the act of dismissal is outside the scope of certiorari for the Corporation's authority is derived solely from the employment contract, and the remedy is inappropriate for breaches of the employment contract. Mr Mugarenang relied upon the authority of R v British Broadcasting Corporation, ex parte Lavell [1983] 1 All ER 250, a decision of a single judge of the Queens Bench Division. That decision is not binding, of course on this court but its persuasive value may assist the Corporation if the ratio desidendi follows the underlying law at Independence as affected by decisions since.

I should say at the outset, I am satisfied that the plaintiff has pursued the available appeal provisions of the PTC Staff By–laws so that the question posed and answered in Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417 does not arise. The appeal procedure has been utilised, and leave for judicial review granted.

Again the plaintiff takes no issue with the power in the Executive Manager Security and Investigation to issue validly terminate notices of the type used in his case, relying as he did on breaches of discipline detailed in PTC Staff By laws s19(a), (c), (h) and (m). That notice was dated 2 April 1990 and was the basis for his application for review to the Reconsideration Committee.

The plaintiff's argument however is that he was denied natural justice in the event of his dismissal. His originating summons seeks a review of that Reconsideration Committees confirmation dated 18 May of the dismissal notice of the 2 April 1990. That Committee had been convened pursuant to s24(2) of the By–laws. Its powers are set forth in subsections (3) & (4).

"(3) The committee so appointed shall met as soon as reasonably possible to consider the request for review and shall have the power to interview any persons, inspect any written material, and to do any other act, deed, matter or thing which it considers to be necessary or desirable in order to ensure that the principles of natural justice have been complied with in relation to the suspect.

(4) The committee may either confirm, reject or modify the decision under review but shall not increase the penalty imposed...